D. Jyothish Kumar vs V.P. Sunil And Ors

This is an appeal preferred under Section 378(4) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., challenging the correctness of the judgment of the Judicial First Class Magistrate - I, Cherthala in C.C. No. 583/2008. That case was taken on file on a complaint preferred by the appellant alleging offence punishable under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the N.I. Act. According to the complainant, in order to discharge a pre-existing liability, the accused/first respondent had issued him a cheque on 17.03.2008 for Rs.3,00,000/-. It is the cheque bearing No. 625093 dated 17.03.2008 for Rs.3,00,000/-, drawn on Thoppumbady branch of Centurian Bank Limited. At the time of issuing and handing over the cheque, he was made to believe that there is sufficient amount in the credit of the first respondent. Believing that version, the appellant presented the cheque through the Vayalar East Service Co-operative Society Limited on 27.03.2008. But it was returned dishonoured due to insufficiency of funds. He received back the cheque on 16.04.2008. Thereafter, on 21.04.2008, he caused to issue a lawyer notice which was duly served on the first respondent on 30.04.2008. Even after the tendering of the notice or receipt of the notice by the first respondent, he did not send any reply nor the amount was paid and thus the complaint was instituted before the trial court on 21.05.2008. Pursuant to the summons, the first respondent entered appearance and pleaded not guilty. Thereafter, the complainant gave evidence as PW1. Exts.P1 to P8 were also marked. On closing prosecution evidence, when examined under Section 313(1)(b) of the Cr.P.C., the first respondent denied the allegation and reiterated his innocence. He also filed a statement in writing to the effect that during 2004, he was working in Fire and Rescue Department in Thrikkakara Fire Station. During that period, the brother of the complainant, K.D. Sunil was also working there. Thereafter, he was transferred to Thripunithura. While working in Thripunithura, he had borrowed an amount of Rs.10,000/- from Mathai@Mathew, a colleague and as a security for borrowing the amount he had handed over a signed cheque to the said Mathew. Thereafter, though the amount with interest was repaid, some dispute arose with regard to the payment of interest, thus the cheque was not returned. Thereafter, the said Mathew handed over the cheque to Sunil, through him it reached his brother, the appellant and by misusing the cheque a claim for Rs.3,00,000/- has been made. According to the first respondent, the claim is not genuine. Thereafter, first respondent gave evidence as DW1. He gave a statement as given during the examination under Section 313(1)(b) of the Cr.P.C. At the time of examining PW1, the appellant had stated that the first respondent and the brother of the appellant were working together in the Fire Station near the Rama Varma Club. DW2, the Fire Station Officer was examined to belie this version. DW3 is the said K.D.Sunilkumar, the brother of the appellant. DW3 was declared hostile to the prosecution and was cross examined by the first respondent. After hearing counsel on both sides, by the impugned judgment, the learned Magistrate found that the appellant could not prove that the Ext.P1 cheque was issued in discharge of a duly enforceable liability. On that premise, the complaint was dismissed and the first respondent was acquitted under Section 255(1) of the Cr.P.C. Aggrieved by the same, the appellant moved this Court seeking leave of the court. After obtaining leave, this appeal has been preferred.

I heard learned counsel on both sides. The trial court records were summoned and examined. According to the learned counsel for the appellant, the reasonings for acquitting the first respondent are not legal or correct. The trial court should not have disbelieved the version of the appellant as PW1; absence of details in the complaint should not have been taken serious by the trial court. Similarly, the defence has not set up a probable case. The trial court has completely misread the evidence of the appellant. There is absolutely no contradiction in the version of PW1. There is no basis in questioning the financial capacity of the appellant. In fact the appellant is a well established dealer in indigenous medicine, he has sufficient financial capacity to lend so much money. Even otherwise, such an aspect does not crop up for consideration in such a proceedings. The trial court also failed to notice that the first respondent had not given any reply to the lawyer notice. According to the learned counsel, after having admitted his signature in Ext.P1 document, it was incumbent on the trial court to draw the presumptions under Sections 118 and 139 of the N.I.Act. But the court in total negation of the settled principles of law proceeded to acquit the first respondent, which is bad.

The following authorities were also relied on by the learned counsel for the appellant:-

i) Uttam Ram v. Devinder Singh Hudan and Another [2019(5) KHC 179] : [2019 (10) SCC 287]

ii) Jacob K.M. v. State of Kerala and Another [ILR 2020 (1) Ker.677]

iii) Sunitha v. Sheela Antony and Another [2020 (3) KLT 340]

iv) Sandhya Rani G. v. State of Kerala and Another [2020(2) KLT 594]

v) Gopakumar v. Anilkumar [2011(4) KLT SN 39 (C. No. 37)]

vi) Joseph Jose v. Baby [2002 (3) KLT SN 46 (C. No. 64)]

vii) Devan v. Krishna Menon [2010 (2) KLT 397]

viii) Mohanan v. Bibhukumar [2003(1) KLT 604] and

ix) Moideen v. Johny [2006(3) KLJ 48]

On the other hand, the learned counsel for the first respondent strongly defended the judgment of the trial court. According to him, the trial court has appreciated the case properly and reached the correct conclusion and acquitted the first respondent. The appellant had no consistent case even with regard to the date of transaction, he has given different versions with regard to the date of payment of money. Similarly, DW3, his brother gave yet another date as the date of transaction. The non-examination of one Ajimon, who is said to be the witness to the transaction also is fatal to the prosecution. According to the learned counsel, merely for the reason that the first respondent had admitted his signature on the Ext.P1 document that will not prove the execution and therefore, the trial court is not expected to draw the presumptions under Sections 118 and 138 of the N.I. Act.

I have carefully gone through the material records and evidence tendered by the parties. As noticed earlier, the definite case of the prosecution is that on 17.03.2008, the first respondent/accused had borrowed an amount of Rs.3,00,000/- from the appellant and in discharge of the same, the Ext.P1 cheque was handed over after making him believe that there is sufficient amount in the credit of the first respondent. When the cheque was presented for encashment, it returned dishonoured due to insufficiency of funds and thereafter, the first respondent was notified through the Ext.P4 notice, which was not responded and that gave a cause of action for instituting a complaint against the first respondent. While the appellant contended that the transaction had originated on the recommendations of DW3 his brother, it is the admitted case that the DW3 and the first respondent are members of service of the Fire and Rescue Department; for some time both of them were working together in Thrikkakara Fire Station and thereafter, they are working in different units. According to the appellant, on the recommendation of the brother, the appellant had lent an amount of Rs.3,00,000/- to the first respondent. At that time itself Ext. P1 cheque was handed over and thereafter, he detracted from the promise and that led to this prosecution. On the other hand, the first respondent has denied the transaction as such. According to him, he had no acquaintance with the appellant. He has never seen him. He had borrowed an amount of Rs.10,000/- from one Mathai @ Mathew, his colleague, while they were working together in Thripunithura and towards the discharge of that amount, a signed blank cheque was given. Even though that amount was repaid, some dispute arose with regard to payment of interest and that made the said Mathew to hand over the cheque to DW3 K.D. Sunilkumar and thus the cheque reached the hands of the appellant and as a result of the conspiracy among the appellant, K.D. Sunilkumar and Mathew, the cheque was presented by inserting the name of the appellant as the payee and huge amount of Rs.3,00,000/-, which he is not bound to pay.

Now the question is, merely for the reason that the first respondent has admitted his signature on the Ext.P1 cheque, whether that would automatically invite the invocation of presumptions under Sections 118 and 139 of N.I.Act. Once the execution of the cheque is admitted or proved, necessarily it is the legal consequence that the complainant is entitled to draw the presumption under the above said sections. Then only the accused/first respondent is expected to discharge the burden and rebut the presumptions that are drawn against him. Here certainly, the first respondent has denied the execution of the cheque. In other words, he has denied any money transaction with the appellant. Now the remaining question is whether the cheque is proved to have been executed by the first respondent. For the same, there is only the oral testimony of PW1. DW3, though said that he has knowledge about the transaction, he has no direct knowledge and his evidence is only hearsay, which cannot advance the case of the appellant.

As rightly noticed by the trial court, a consistent case cannot be inferred in the version of PW1, with regard to the transaction. PW1 was examined twice. At first, he said that the amount was handed over sometimes in January, 2008 and that the cheque was issued on 17.03.2008. But at the second phase of his examination, he said that the amount was handed over and the cheque was issued on the same day. In that way, there is some confusion as to when the actual amount was passed to the first respondent. Added to this, when the appellant gave evidence as PW1, he said that everything was done in the presence of one Ajimon. But the said Ajimon has not been cited or examined for the case. He would have been the best person, as an independent witness to speak about the transaction. If he was examined in the case that would have helped the court in forming an opinion about the transaction. There is no reason as to why the said Ajimon was not examined for the case. It is a matter for taking adverse view against the appellant.

Of course very many lacunae can be pointed out in the case of the defence. The first respondent did not reply the lawyer notice. Similarly, he has not given possible explanation as to why he had not taken steps for getting back the cheque, even after the repayment of the amount to the said Mathew. But such lapses or lacunae in the case of the defence will not give any automatic boost to the case of the prosecution. The prosecution should be able to establish their case on their own. The lapses on the part of the defence cannot be made advantage by the prosecution. Similarly, there is no substance in the contention that the appellant did not state the details of the transaction etc. By numerous authorities, it has been stated that such details are not necessary to be stated in the complaint. If it is proved that the cheque was executed and issued by the first respondent/accused in discharge of a legally enforceable liability, then the appellant is entitled to draw the presumptions. But here, the appellant has inherent weaknesses in his case. All the same, even if there are lapses in the defence version that cannot be taken use of by the appellant. Here the appellant has not established that the cheque was issued in a transaction as alleged by him and therefore, the presumptions under Sections 118 and 139 of the N.I. Act cannot be drawn in favour of the appellant.

The facts of the case vis-a-vis the facts of the authorities relied on by the learned counsel for the appellant are clearly distinguishable. Here the very case of the first respondent is that he had not borrowed any amount from the appellant nor the Ext.P1 was given to the appellant. In my reading, the appellant could not establish that there was long standing acquaintance between them which prompted him to lend so much money to the first respondent. In the circumstances and in the absence of fool proof evidence, he cannot be entitled to draw the presumptions. The trial court has analysed evidence properly and correctly which do not call for interference in appeal. I do not find any reason to interfere with the finding and the appeal is liable to be dismissed.

Dismissed.